Motsamai Mokotjo
In a democratic society, a free press plays a vital role in holding those in power accountable, safeguarding the public interest, and promoting transparency.
However, the country’s Criminal Procedure and Evidence Act (CP&E) of 1981, particularly Section (c), undermines the fundamental rights of journalists and poses a significant threat to their freedom.
By allowing for the arbitrary arrest and imprisonment of journalists for their refusal to produce documents or sources, this archaic law stifles investigative journalism and erodes press freedom in Lesotho.
Section (c) of the Act grants magistrates the power to adjourn proceedings and issue warrants of commitment, leading to the imprisonment of individuals who refuse or fail to produce documents or evidence. While the intention may be to ensure the efficiency of legal proceedings, the language of the law lacks crucial safeguards that protect the rights of journalists.
Journalism thrives on protecting sources and maintaining confidentiality to gather and expose important information. By compelling journalists to produce documents or sources, this law violates the principles of journalistic independence and jeopardizes the freedom of the press.
Journalists may face imprisonment for their refusal, leaving them with the difficult choice of betraying their sources or facing legal consequences.
The outdated law instils a chilling effect on investigative journalism, discouraging journalists from pursuing critical stories and exposing corruption or misconduct.
The fear of being incarcerated or penalized for protecting sources or confidential information dampens the spirit of investigative journalism, hindering the media’s ability to act as a watchdog and ensure public accountability.
The ambiguity exacerbates the problem. The lack of clear guidelines on what constitutes a “just excuse†for refusing to produce documents allows for subjective interpretation, placing journalists at the mercy of individual magistrates.
This arbitrary application of the law gives rise to potential abuse of power, where journalists can be targeted based on personal or political motivations, rather than the pursuit of justice.
Lesotho must take note of international standards and best practices that protect press freedom and the right to privacy.
The United Nations Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), to which Lesotho is a party, guarantee the right to freedom of expression, including freedom of the press.
The use of imprisonment as a means to coerce journalists into revealing their sources or documents runs contrary to these international commitments.
Comparative jurisdictions provide valuable insights into how other countries strike a balance between protecting the integrity of legal proceedings and safeguarding the freedom of the press. Many democratic nations have enacted laws that protect journalists’ rights to refuse disclosure of sources or documents, recognizing the importance of investigative journalism in a democratic society. Lesotho should consider adopting similar legal frameworks to ensure press freedom.
It is essential for Lesotho’s government and legal system to acknowledge the threat posed by Section (c) of the (CP&E) Act and take immediate steps to reform this outdated law. Press freedom is a cornerstone of a democratic society, and protecting it should be a priority.
Priorities are as follows:
Amendment of Section (c): The language of the law should be revised to ensure that journalists are explicitly protected from arbitrary arrest or imprisonment for refusing to produce documents or sources. Safeguards should be put in place to protect the integrity of the press and the freedom of journalists to carry out their professional duties.
Legal Protection for Journalistic Privilege: Lesotho should introduce legislation recognizing the concept of journalistic privilege, which safeguards the confidentiality of sources and the right of journalists to refuse disclosure. This legal protection will enhance the ability of journalists to gather information and perform their crucial role in society.
Awareness and Education: Organizations should raise awareness about the legal requirements for producing documents or things when requested. They can conduct training sessions or workshops to inform employees and stakeholders about their obligations and the consequences of non-compliance.
Clear Communication: Ensure that the requirements for producing documents or things are clearly communicated to all relevant parties. Clearly outline the consequences of non-compliance, emphasizing the potential legal implications and penalties.
Standard Operating Procedures: Develop and implement standard operating procedures (SOPs) that outline the process for requesting and producing documents or things. These SOPs should be easily accessible to employees and stakeholders, providing clear guidance on how to comply with the legal requirements.
Document Management Systems: Implement effective document management systems that facilitate easy retrieval and production of required documents or things. This can include digital storage solutions, centralized databases, or well-organized physical filing systems.
Compliance Monitoring: Regularly monitor and audit compliance with document production requirements within the organization. This can involve conducting internal reviews, spot-checks, or periodic assessments to ensure adherence to the legal obligations.
Consequences for Non-Compliance: Clearly define and enforce consequences for individuals who refuse or fail to produce required documents or things without a just excuse. These consequences can include disciplinary actions, such as warnings, suspensions, or termination of employment, depending on the severity of the non-compliance.
Collaboration with Authorities: Establish effective communication channels with the relevant authorities, such as the magistrate’s office or law enforcement agencies. Organizations should cooperate and promptly provide requested information or evidence to support legal proceedings, ensuring a smooth and efficient process.
Continuous Improvement: Regularly evaluate and update the procedures and policies related to document production to adapt to any changes in legislation or organizational needs. Seek feedback from employees and stakeholders to identify areas for improvement and implement necessary changes accordingly.
By undertaking these reforms, Lesotho can protect press freedom, uphold the rights of journalists, and create an environment that fosters investigative journalism. A free press is crucial for a vibrant democracy, and it is the responsibility of the government and society as a whole to safeguard this fundamental pillar of democracy.
